Amici Curiae: The Feminist Poetry Reading, Distracting Glances, and North Korean Aggression Edition

New and Improved: Recent Canadian Law Firm Mergers

Recent weeks have seen two major mergers involving Canadian firms. First, Lang Michener LLP merged with McMillan LLP in a move creating a new national heavyweight. One week later, Montreal-based Ogilvy Renault LLP merged with Britain’s Norton Rose LLP, turning the firm into what is arguably Canada’s foremost international shop.

The Lang Michener-McMillan merger will operate under the McMillan name. The firm now boasts around 395 lawyers, making it Canada’s twelfth largest, with offices across Canada as well as in Hong Kong.

While the new McMillan merger creates a new national heavyweight, the Ogilvy Renault–Norton Rose merger arguably creates a new international heavyweight. Noticeably, while the new firm now boasts 38 offices (including offices in Canada, Europe, Africa and Asia), there will be no office in the United States as neither firm currently has an American office. The new firm will operate under the name Norton Rose OR. Commentators are viewing the merger as an example of the significant effect that changing business conditions resulting from globalization are having on law firms in globalized countries.

Best Way to Get Out of Trial…Possibly Ever

Work or family? Unfortunately those in the legal world have to make a tough choice between the two more often than they might like to admit. New York lawyer Bennett Epstein recently found himself in just such a situation when he realized that his daughter was due to give birth to a baby – sex unknown – in the middle of the scheduled dates for an upcoming trial. While most lawyers would likely accept the finality of a court date begrudgingly, Epstein responded in a manner which can only be described as straight up awesome.

In a memo pleading for the Court’s understanding, Epstein, who is Jewish, explained how, should his daughter give birth to a baby boy, he would be morally obliged to be present at the bris, which would interfere with the trial, but, in the event the newborn was a girl, he would have no conflict. Female judge Kimba Wood acceded to Epstein’s request, but, refusing to be out-done and in defense of her own sex, jokingly responded that, should it be a girl, the Court would hold a public celebration replete with poetry readings celebrating girls and women.

B.C. Polygamy Trial Under Way

In a case virtually guaranteed to end up before the Supreme Court of Canada, the British Columbia Supreme Court has begun hearing arguments in a reference case testing the constitutionality of Canada’s polygamy laws in light of the freedom of religion.

The reference was launched after criminal charges for polygamy were dropped against two men from the Mormon community of Bountiful, B.C in 2009. Specifically, the reference asks:

a) Is section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

b) What are the necessary elements of the offence in section 293 of the Criminal Code of Canada? Without limiting this question, does section 293 require that the polygamy or conjugal union in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?

As would be expected, the case has already aroused plenty of interest, with 16 groups already requesting intervener status. The arguments from both sides are both complex and interesting. In particular, the pro-polygamy arguments have centered around the current and historical discriminatory bases of the policy, while the federal government has relied largely on the secondary, but related negative social harms connoted with polygamous sects such as forced marriage.

While obviously a legal issue, as with most Charter challenges, the case engages significant questions of social policy. We at TheCourt.ca would love to hear your thoughts on either or both.

Making Strange Faces Could Get You in Trouble

In a bizarre twist of events, Justice Garton declared a second mistrial for Erika Mendieta, who was charged with murdering her two-year-old daughter in November 2003, after a former prosecutor Paul Alexander “made strange faces” that distracted the jury and intimidated Ms. Mendieta. Last year, Ms. Mendieta’s first trial was also declared a mistrial after the jury could not reach a verdict.

Mr. Alexander had been the co-counsel with Crown prosecutor Allison MacPherson in the first murder trial. In the second trial, Alexander was not on the case but he sat in the courtroom, without wearing his lawyer’s black robes, during Ms. Mendieta’s cross-examination.

Both the jury and Mendieta said Mr. Alexander, sitting right behind Ms. Mendieta’s lawyer, was “rolling his eyes” and “making quirky faces”. The note, which was submitted by the jury to the judge, says “We find him very distracting, and he is making strange faces all the time. We feel very uncomfortable with him.” One juror told the Star that Mr. Alexander would stare at the jurors intensely, and made him feel “like we were being scrutinized closely, like we were on trial or something.”

The behaviour of Paul Alexander drew intense criticisms in the legal community. Ontario’s attorney-general Chris Bentley is being urged to suspend Mr. Alexander. “This assistant Crown just screwed up a serious trial that was nearing its finality,” NDP critic Peter Kormos said at the legislature. “It’s very expensive for the public. These sorts of antics are what cause people across Ontario and across Canada to simply shake their heads when it comes to justice in our criminal courtrooms.” Osgoode Adjunct Professor Jonathan Rosenthal also commented in the Toronto Star that it is not acceptable when a spectator in the courtroom is making faces.

At the same time, the unprofessional “persistent behaviour” of Mr. Alexander leads me to wonder why Justice Garton did not stop the “distractions” before it amounted to a mistrial…

Collection Lawyers Scammed

Internet fraud cases are so prevalent and sophisticated nowadays that they could escape the scrutiny of experienced lawyers. Six people were indicted in a $32 million internet collection scam that caught 80 lawyers in Pennsylvania, Massachusetts, Alabama, and Georgia.

As reported by the ABA journal, the scam worked this way: “An e-mail would seek a lawyer’s help collecting a debt, divorce settlement or other money. Then the lawyer would be contacted by a purported representative for the person or company owing the money who would offer to pay the debt. When the lawyer received the check, he or she would deposit it, and then would wire the funds to an Asian bank before discovering the check was fraudulent.”

David Bilinsky shared his advice on this matter on Slaw, outlining specific steps that could be taken to prevent being scammed. He also suggested using “Google alert” to track if your identity has been stolen, which would notify you if your name appears on the web.  A NYT article also has directions on the steps you need to take to protect your online accounts.

North Korea Artillery Assault

North Korea made numerous headlines this week that drew intense reactions in the blogosphere. First, they announced a new uranium enrichment facility that could be used to produce nuclear-weapons is in place. Next, they attacked a South Korean Island that killed two marines and wounded at least 19 soldiers and civilians. If these are not enough, a history of Korean tensions is outlined here.

“No one can completely understand the motivations of North Korea.” Jimmy Carter, the 39^th president of the US, wrote in the Washington Post. Six weeks ago, Kim Jong Il anointed his youngest son Kim Jong Un as his heir apparent. Consequently, it is speculated that these events are meant to remind the world of its strength. Nations condemned the North Korean artillery attack; and US President Obama sent a US nuclear aircraft carrier to guard against future North Korean aggression. Commentaries may be read here, here, here, and here.

Jimmy Carter also wrote: “Pyongyang has sent a consistent message that during direct talks with the United States, it is ready to conclude an agreement to end its nuclear programs, put them all under IAEA inspection and conclude a permanent peace treaty to replace the ‘temporary’ cease-fire of 1953. We should consider responding to this offer. The unfortunate alternative is for North Koreans to take whatever actions they consider necessary to defend themselves from what they claim to fear most: a military attack supported by the United States, along with efforts to change the political regime.”